Court No. - 1
Case :- WRIT - C No. - 8454 of 2019 Petitioner :- Asfaq Mohammad Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Yogesh Kumar Saxena Counsel for Respondent :- C.S.C.,Amar Bahadur Maurya,Anand Pati Tiwari,Manvendra Nath Singh
Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.
1. Vakalatnama filed today by Sri Manvendra Nath Singh, learned counsel for respondent nos.2 and 3 is taken on record.
2. Heard Sri Yogesh Kumar Saxena, learned counsel for the petitioner, Sri A.B. Maurya, learned counsel for the respondent no.5- Shobha Ram Shakya, Sri M.N. Singh, learned counsel for the respondent nos.2 and 3, Sri Rahul Malviya, learned counsel for the State respondents. Perused the record.
3. By means of this petition under Article 226 of the Constitution, the petitioner has sought quashing of the order dated 23.1.2019 whereby the claim for delivery of shop to the petitioner has been rejected and that of the respondent-Shobha Ram Shakya has been allowed.
4. Assailing the order impugned, it is contended on behalf of the petitioner, that Shobha Ram Shakya was never a valid allottee and yet he has been directed to be allotted Shop No.30 in which he committed trespass by forcefully entering the premises and taking possession thereof.
5. Briefly stated facts of the case are that there were certain kiosks at the place where about 36 shops came to be constructed by Nagar Panchayat. While Shobha Ram claimed to be an allottee under some assurance given to him at the time of construction as his kiosk was demolished, the petitioner claimed allotment under some public advertisement carried out by the Nagar Panchayat. Shobha Ram Shakya alongwith several other persons were issued notice on 5.7.2005 on the ground that earlier their claim came to be dismissed vide order dated 2.11.2004 passed in Civil Miscellaneous Writ Petition No.26884 of 2000. This notice was challenged by two persons before the Court and the Court in Writ C No.49577 of 2005 dismissed the writ petition with a liberty to those petitioners to file their objections. In the meanwhile since some allotment proceedings were conducted, it appears by Nagar Panchayat an agreement with respect to shop no.30 came to be entered between the petitioner and Nagar Panchayat for a shop on 1.9.2000 for a period of 30 years. However, since the possession of the shop was with Shobha Ram and he was not vacating the shop no.30 inspite of agreement entered between the petitioner and the Nagar Panchayat, petitioner represented the matter before the District Magistrate. When nothing was done, the petitioner represented before the Commissioner by preferring an appeal which came to be rejected and then petitioner filed a writ petition which was also dismissed bearing Writ C No.-44611 of 2006. Then the District Magistrate again summoned the record and inquired the matter and held under his order dated 1.8.2007 that respondent- Shobha Ram Shakya was in unauthorized possession of Shop No.30 and, therefore, directed for his removal from the shop also making recovery for unauthorized use by that Shobha Ram. Shobha Ram, against the said order filed a writ petition before this Court bearing Writ C No.45816 of 2008 which was allowed by this Court setting aside the orders dated 1.8.2007 passed by the District Magistrate and 10.5.2008 passed by the Divisional Commissioner, Kanpur and also the notice dated 23.8.2008 issued by the Executive Officer, Nagar Panchayat. This Court further directed the District Magistrate to pass an appropriate order after hearing the petitioner in the said writ petition on basically three issues which are reproduced hereunder:
'A. Whether there was any allotment order issued in favour of the petitioner.
B. What was the right of the respondent No.6 to claim allotment of the shop.
C. Whether there was any transparency involved in allotment of these shops.'
6. It is pursuant to the said order that the District Magistrate, Auraiya proceeded to decide the matter on 6.7.2012 and held that the order that was passed on 1.8.2007 was a valid order, meaning thereby Shobha Ram Shakya was found to be in unauthorised possession of the shop. This order was passed by the District Magistrate on the basis of the enquiry report dated 29.6.2012. The said order came to be challenged by Shobha Ram before this Court vide Writ C No.34192 of 2012. The said writ petition was allowed on the ground that there was no specific finding returned by the District Magistrate on the three issues on which this Court had earlier directed the District Magistrate to hold enquiry and record finding of fact on those issues. It was however further provided in the order dated 30.11.2017 leaving it open for the District Magistrate to consider the submission of the present petitioner who was respondent in the said case, to the effect that petitioner (now respondent here) never had any valid allotment order in his favor. The matter thus again came to be considered by the District Magistrate who has now come to pass the order dated 23.1.2019 which is impugned in the present petition.
7. Assailing the findings returned in the order impugned it has been argued by Sri Saxena that once an enquiry report dated 29.6.2012 was already available with the District Magistrate, the District Magistrate was required to consider the said enquiry report and record the finding of fact on those three issues. He argues that 25.7.2018 was fixed for hearing of which notices were served upon the parties on 23.4.2018 and yet he obtained an enquiry report on 25.4.2018 on the basis of which he was hearing the matter and proceeded to pass the order. However, it is submitted after he conducted the hearing he issued some letter to the Executive Officer on 26.4.2018 requiring some fresh enquiry which was submitted on 4.5.2018 and then on the said basis held that the agreement that was entered with Shobha Ram was under the joint signatures of the then Chairman and the Executive Officer of the Nagar Panchayat which also bears the signature of the counter clerk and those signatures were found to be genuine and thus there was a valid agreement on the basis of a valid allotment, whereas on the agreement which was submitted by the present petitioner, it is held, there is signature of only Chairman and not of the Executive Officer, therefore the agreement of the petitioner was held to be bearing some forge signatures.
8. It has been argued on behalf of the petitioner that the then Chairman, namely Adarsh Kumar Mishra had earlier filed a counter affidavit in the writ petition of Shobha Ram Shakya in which he had claimed that there was never any valid allotment order ever executed in favour of the petitioner nor, any agreement to that effect was ever executed.
9. Per contra, the argument advanced by learned counsel for the contesting respondent-Shobha Ram is that there was a valid agreement executed between Shobha Ram and the Chairman and Executive Officer of the Nagar Panchayat. It has been argued that there is a finding of fact returned by the competent authority and this Court may not enter into those findings of fact in exercise of power under Article 226 of the Constitution of India.
10. Considering the disputed question of fact regarding two different inquiries and the verification report called for and on the point of allotment order and its validity, if any, in favour of Shobha Ram Shakya or petitioner, we summoned the original records relating to the allotment of Shobha Ram Shakya and the petitioner vide order dated 9.12.2012.
11. Today the original records have been produced.
12. From the perusal of the original records relating to the file of allotment of shop in favour of Shobha Ram, we have not found any such proceedings that could be said to have resulted in a valid agreement being executed in favor of that Shobha Ram, instead, what we find is, that after the report was submitted on 25.4.2018 and hearing was held on the same date, the Executive Officer was directed to verify the records of the two rival parties. The Executive Officer has submitted the report on 4.5.2018 to the effect that while the agreement was executed in favor of the present petitioner-Smt. Rahisha Begum under the signatures of Sri Kant Mishra only, there were signatures found to be valid of Adarsh Kumar Mishra, the then Chairman alongwith the then Executive Officer, Sri Amar Singh on the agreement of Shobha Ram. We fail to understand as to when a counter affidavit had been sworn by the then Chairman, Adarsh Kumar Mishra himself in Writ Petition No.49577 of 2005, stating categorically in paragraph no.7 that no allotment order had ever been made in favor of the petitioner, how his signatures could be verified. There is no statement of Adarsh Kumar Mishra available on record, to the effect that it was his signatures on the document of agreement. Under the circumstances it can be concluded very safely that till the date of swearing of the affidavit in the High Court by the then Chairman, Adarsh Kumar Mishra in September 2005 there was no such agreement in existence. Subsequently an agreement came to be executed is a questionable issue but atleast one thing is very much clear that no allotment order ever existed in favor of Shobha Ram. Under the circumstances no valid agreement could have been executed and if any signatures have been obtained on such agreement that will not create any legally enforceable right in favor of respondent- Shobha Ram.
13. Under the circumstances, therefore, the order impugned creating rights in favour of Shobha Ram and holding him to be a valid allottee and justifying the agreement deserves to be set aside.
14. In so far as the present petitioner is concerned, we have also not found any allotment order to be existing in his favor. He has also been claiming only on the basis of some agreement entered in the year 2000. These are the shops constructed by utilizing public money and thus allotment of shops has to be by public notice and bid proceedings to be conducted in that regard and therefore in the circumstances we are while quashing the order dated 23.1.2019 impugned in the writ petition also direct the respondents-Nagar Panchayat to issue public advertisement/notice for allotment of the shop constructed by it within a period of four weeks from today and make an allotment of the shops of the successful bidders and enter into an agreement.
15. The writ petition therefore succeeds in part and is allowed. The order dated 23.1.2019 impugned in the writ petition is hereby quashed in so far as it settles right in favor of the Shobha Ram qua shop no.30. In so far as claim of the petitioner for possession of shop no.30 is concerned, the writ petition stands dismissed. However, we further direct that Shobha Ram Shakya-Respondent no.5 shall vacate the shop within a period of eight weeks from today and in any case by 20th February, 2020 voluntarily, failing which, respondents- Nagar Panchayat shall forcefully get him evicted from shop no.30 and then shall make wide publication of the shop and shall ensure that the allotment is made through public advertisement only as directed herein above.
16. Original records, produced before the Court are returned to the learned Standing Counsel.
(Ajit Kumar, J.) (Ramesh Sinha, J.) Order Date :- 17.12.2019 Deepika